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CJE Opinion No. 2007-6

Speaking at Conference Sponsored by Regular Litigant in Judge's Court

July 24, 2007

CJE Opinion No. 2007-6

You have asked the committee whether, consistent with the Code of Judicial Conduct, you may give the keynote address at the next annual conference of a certain organization devoted to developing the leadership potential of Massachusetts high school students. You were invited to be the keynote speaker at this year's conference, which was held at the State House, but declined the invitation, citing your need to obtain an advisory opinion from this committee. You were then invited to speak at next year's event instead.

The invitation letter you received was signed by the president of the organization. He is a member of a major Boston law firm. While the details of next year's conference have not been finalized, you have provided the committee with material from this year's event, assuming that the next event will be the same or similar.

The conference had been sponsored in past years by a number of businesses at varying levels of sponsorship participation. It appears that this year there was only one "presenting sponsor," specifically a charitable foundation created by a major insurance corporation that regularly has litigation in your court. The company's name and corporate logo are featured prominently in the promotional materials for the conference.

According to the invitation letter, "[t]he purpose of the conference, sponsored by [the company's] Insurance Charitable Foundation, is to bring together young student leaders from the Eastern Massachusetts area to educate them about the important role of leadership in our society, and the many forms and faces that exemplify leadership." You were asked to focus your remarks on how these public, private, and parochial high school juniors and seniors, "as future leaders working and living in a diverse society can do positive things to help each other."

According to the conference agenda you received, your keynote speech was scheduled to be preceded by remarks from a representative of the presenting sponsor. Other speakers and participants in the various conference workshops included elected politicians, attorneys, and leaders in business, education, government, civic organizations, sports, and entertainment Some of the speakers and organizations occasionally have cases before you and in your court.

The Code of Judicial Conduct recognizes that judges, consistent with their judicial duties, need not remain cloistered in an ivory tower. Therefore, an address to a group of students already identified as leaders in their respective schools, absent other concerns, would certainly be appropriate.

Your inquiry, however, implicates Section 2 B of the Code of Judicial Conduct which states in part:

"A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge."

The committee recently indicated, in CJE Opinion 2007-4, that, even where the goal of an event is a laudable one, attendance by judges as guests of honor at an event produced and sponsored by those who appear in the courts of the Commonwealth raises two interrelated concerns: first, whether the judicial participation operates to advance the private interests of others -- in Opinion 2007-4, members of a consortium of law firms and legal organizations whose mission was to identify, recruit, advance and retain lawyers of color or of the particular law firm that hosted the event; second, whether judicial participation creates an appearance that an organization or its sponsors are in a special position to influence the participating judges. For purposes of analysis under Section 2 B, there is no distinction between the role of a guest of honor, which was involved in Opinion 2007-4, and being the keynote speaker in your case. Both involve prominent participation in the event, well beyond mere attendance.

The committee believes that, if there were broad support and sponsorship from divergent participants of both the public and private sectors at next year's conference, as there may have been in the past, and given the importance of judges sharing in the civic life of the community, your keynote address to students on the importance of leadership would not, in itself, lend the prestige of your judicial office to advance the private interests of others, nor would it convey the impression that others are in a special position to influence you.

It is, however, the special prominence of the "presenting sponsor," as occurred in this year's event, that is a cause for concern. From the documents that you have supplied, it appears that the sponsoring corporation, a regular litigant in your court, did not separate itself from its charitable foundation that was listed as the actual sponsor of the event. The two entities were essentially conflated in the program materials shown to you. Therefore, if next year's conference is sponsored by the same entity, or another similar organization that also litigates before your court, the sponsor is not unlike the host law firm discussed in Opinion 2007-4.

As we have said, judicial attendance at events sponsored in whole or in part by individuals or law firms that may appear before the attending judge is inconsistent with the Code. See, e.g., CJE Opinion 2002-12 (advising that judges should not attend law school event to honor its graduates who had become judges if event was paid for and sponsored by individuals named in the event program); CJE Opinion 2003-1 (advising that judge should not receive an award at Chamber of Commerce luncheon sponsored by identified businesses and law firm that appear before the court); CJE Opinion 2004-3 (suggesting that conference of judges could not be sponsored by corporations whose logos would be prominently displayed).

The committee is of the opinion that your participation as keynote speaker at a conference presented by a single sponsor that regularly appears in your court, particularly following closely in time the remarks by a representative of the sponsor, would trigger Section 2 B concerns, and thus in the current format you ought not to accept an invitation to speak.

You ask, in the alternative, whether there are any steps that you or the conference organizers can take to ameliorate these concerns so as to allow your participation. As in Opinion 2007-4, the committee recognizes that you cannot control the event. In Opinion 2007-4, however, the committee outlined four conditions for the judge to insist on, all of which were designed to keep the focus of the event on its laudable public purpose and not on the host's involvement. The committee advised, first, that the judge should insist that the host not use its role in the event honoring the judges in its advertising, promotional, or solicitation materials; second, that the judge should require some statement at the event that sponsorship was not limited to one particular donor but that hosting the event had been rotated among the membership; third, that any thanks to the host should be kept modest and discreet and not highlight any connection between the judge and the host; and fourth, that the judge should insist that the host use best efforts to ensure that media coverage of the event be focused on the purpose of the event and not the role of the host.

As next year's conference is still in its planning stages, you may be able to insist on the same or similar conditions. If the conference is to have only one "presenting sponsor," as it did this year, the committee surmises, however, that a corporate sponsor would be reluctant to take on the considerable financial outlay to underwrite a conference without the benefit of major recognition and prominence at the conference and in its promotional material and media outreach. In any event, we reiterate that, with a single sponsor that litigates before your court, Section 2 B prohibits your appearance.

In the event that the conference will have multiple sponsorships from a wide variety of organizations in the business, educational, governmental, and civic arenas, and in the (perhaps unlikely) event that the conference organizers and sponsors would comply with conditions similar to those noted above, which keep the focus on the event and reduce the appearance that you have any special connection to the sponsors, we conclude that you would be permitted to give a public address to students on the importance of leadership without implicating the prohibition in Section 2 B.